1. Chapter 7
Part II

2. CBA for Oysters 15 deaths a year
Worth treating all oysters and driving many small houses out of business?

3. Example - Court/Agency Conflicts in Interpretation
Portland wants to regulate broadband providers
Industry says they are telecommunications providers, thus not subject to local regulation
9th Cir Appeals Court agrees that only the FCC can regulate them
FCC then promulgates a rule defining broadband providers as information services, which can be regulated by the local governent, in conflict with the appeals court
What did the Appeals Court say?
Did the United States Supreme Court agree that it was the 9th Cir's call?

4. Miller v. AT&T Corp., 250 F.3d 820 (4th Cir. 2001)
The Family and Medical Leave Act (FMLA) does not define medical treatment
The agency finds that visits to the doctor that do not require specific treatment are covered by the act
What is the ambiguity?
Did the court accept the agency interpretation?
What did the dissent want?
Why does this decision make practical sense?
Think about going to the doctor for H1N1
Are you going to get treatment?

5. Opinions in Litigation
Chevron was a rule making, with all the attendant process and review
What if the agency takes a position for the first time during litigation?
Why might the court not trust it?
Bowen v. Georgetown University Hospital, 488 U.S. 204 (1988)
Why might an amicus brief in case where the agency has not interest get more deference?
Auer v. Robbins, 519 U.S. 452 (1997)

6. What Agency do you Defer to?
While many agencies may have some responsibilities under a given law, the court will only defer to the agency with the primary responsibility for administering the law
Why would it be a problem to defer to more than one agency for the same statutory provisions?

7. What if the question involves the jurisdiction of the agency?
Why might the court not defer?
Why might Scalia have argued that deference on jurisdiction was as valid as any other area of Chevron deference?
Lower courts have agreed with Scalia

8. Christensen v. Harris County, 529 U.S. 576 (2000)
What did the court rule?
“Here we confront an interpretation contained in an opinion letter, not one arrived at after, for example, a formal adjudication or notice-and-comment rulemaking. Interpretations such as those in opinion letters--like interpretations contained in policy statements, agency manuals, and enforcement guidelines, all of which lack the force of law--do not warrant Chevron-style deference.”
Why is this consistent with our definition of a guidance document?

9. When does Chevron Apply? - United States v. Mead, 533 U.S. 218 (2001)
Chevron was a notice and comment rule
Why does the notice and comment process better assure that an agency legal interpretation is sound?
Mead is letter ruling on the classification of a product for tariff purposes (Daytimer calendars)
No notice and comment, thus no vetting
Can be changed at a latter date without notice and comment - does not bind the agency
Should this letter ruling get Chevron deference?

10. The Mead Test
administrative implementation of a particular statutory provision qualifies for Chevron deference when it appears that Congress delegated authority to the agency generally to make rules carrying the force of law, and that the agency interpretation claiming deference was promulgated in the exercise of that authority.
What would you look for to decide if Mead applied?

11. Back to Persuasiveness? - Barnhart v. Walton, 535 U.S. 212 (2002)
Barnhart factors
The importance of interpretation to agency policy;
The period that the agency has held the view;
The legal expertise of the agency;
The complexity of the problem;
These are neither Mead nor Chevron, but ad hoc
What can the agency due to strengthen its case for deference?

12. Applying Barnhart
HUD issues guidance on construction of the anti-kickback provisions in a real estate act
Published in the register, but no notice and comment
Are they binding under Barnhart?
Yes, according to the Second and Ninth Circuits; no, according to the Seventh Circuit.
You are not the only person who is confused

13. Public Citizen v. U. S. Dept. of Health and Human Services, 332 F
Public Citizen v. U.S. Dept. of Health and Human Services, 332 F.3d 654 (D.C. Cir. 2003)
Is the Medicare Manual a notice and comment regulation?
If not, what is it?
Does this look more like Mead or Chevron?
Did the court find that the manual was a regulation with the force of law?
How can the Medicare Manual be binding on providers if it does not have the force of law?

14. ABA Adlaw Conference 2008 - Justice Garland, 2nd Cir, on Chevron:
If you have an ambiguous statute, and need Chevron deference, do not say that the interpretation is clear and there is no other way to construe the law. Say it is ambiguous and you are making a reasonable interpretation based on your knowledge of the statute and the regulatory circumstances.

15. Interpretation of Agency Rules
“‘‘a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt. The intention of Congress or the principles of the Constitution in some situations may be relevant in the first instance in choosing between various constructions. But the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.
Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), upheld by Auer v. Robbins, 519 U.S. 452 (1997)

16. Implications of Seminole Rock /Auer
Should interpretation of rules and statutes be the same standard?
Does Seminole Rock /Auer look like Chevron?
What perverse incentives does this give the agency if it gets to resolve ambiguous rules?
What if it just repeats the statute in it rule?
Does it get more deference that way?

17. Judicial Review of Facts

18. Scope of Judicial Review of Facts
Congress sets scope of review, within constitutional boundaries.
Since the Constitution is silent on agencies, Congress has a pretty free hand
Congress can allow anything from a trial de novo to no review, unless such an action runs afoul of the constitution.

19. Trial De Novo You start over at the trial court
Agency findings can be used as evidence, but there is no deference to the agency
FOIA
Used more by the states than the feds

20. Independent Judgment on the Evidence
Decide on the agency record, but do not defer to the agency's interpretation of the record
Sort of like appeals in LA

21. Clearly Erroneous
Definite and firm conviction that a mistake has been made on the facts or policy
Same as reviewing a verdict by a trial judge without a jury

22. Substantial Evidence - Formal Adjudications
706(2)(E) - only applies to formal adjudications and formal rulemaking
Could a reasonable person have reached the same conclusion?
Standard for reviewing a jury verdict or for taking a case from the jury
Should a jury get more or less deference than an agency?
Hint - substantial means some, not a lot, when you are the agency

23. Substantial Evidence - Informal Adjudications and Rulemaking
Arbitrary and capricious or abuse of discretion
Same assessment of reasonableness as 706(2)(E), so the result is about the same as the substantial evidence test used for formal proceedings
This is the most common standard

24. Some Evidence Scintilla test
The agency needs to show even less than in the substantial evidence standard
Only limited use

25. Facts Not Reviewable At All
Congress can prevent certain types of judicial review
Compensation decisions under the Smallpox Vaccine Compensation Act are not reviewable
Enabling law is always reviewable unless Congress has taken away the court's subject matter jurisdiction

26. What if the Court thinks the Agency's Policy Choice is Wrong?
Should the court defer to findings which it believes are clearly erroneous, but are supported by substantial evidence?
Why is this consistent with the political control of agencies?
When the legislature gives the agency the power, it is also saying that it only wants agency decisions overturned in the most serious cases
Courts have different political views than agencies and thus they should be esp. careful about reversing agency decisions.

27. Agency/ALJ conflicts: Universal Camera v. NLRB, 340 US 474 (1951)
Employer fires chairman after he testified at an NLRB meeting
What did the hearing officer do?
Believed the company and did not reinstate him
What did the NLRB do?
NLRB rejects the hearing officer's finding
Reinstated the chairman with back pay

28. What is the key legal issue before the court?
Should the court reviewing the NLRB's action consider the hearing officer's recommendation?
Is the agency bound by the hearing examiner's opinion?
Should the court look only to the part of the record that the agency relies on for their decision or the record as a whole?
Court says you have to look at the whole record, including the ALJ's findings

29. When Are the ALJ's Findings Most Persuasive?
What type of rulings by an ALJ carry the most weight with the court when there is conflict between the ALJ and the agency?

30. ALJs v. Court Masters
Why is the deference due an ALJ different from the deference due a master appointed to a judge, whose findings can only be overruled if clearly erroneous?
Where does the Master get the power?
What if the agency does delegate final decsionmaking authority to the ALJ, then wants to change a decision?
What about Louisiana and the Central Panel?

31. Do Chevron and Substantial Evidence Come to the Same Result?
Chevron is about interpretations of statutes
Substantial evidence is about factual disputes
What about mixed questions of law and fact?
Does it really matter which standard we apply?